News of global piracy has faded into the background of the international arena for some, but many countries are still dealing with it. While an international maritime anti-fraud agency has reported a 54 percent reduction in piracy attacks off the Somali coast, recent attacks show that piracy is still a major global problem. The same anti-fraud agency that reported the reduction, the International Maritime Bureau (IMB), also reported that piracy continues to cost global trade up to 12 billion dollars annually. Furthermore, the threat has increased in areas that once had relatively low levels of pirate attacks.

Attacks have occurred as recently as this past week. On Monday, October 15, Nigerian pirates attacked a French cargo vessel bound for the Nigerian port of Onne. While the cargo vessel safely docked at the port, authorities learned that the pirates had actually kidnapped six Russians and one Estonian. Nigerian Special Forces are tirelessly working with Russia and Estonia to locate the kidnapped crewmembers, although their whereabouts remain unknown.

This latest attack near the Niger Delta is an example of an alarming trend of increased piracy in West Africa. While there were only 25 incidents of piracy reported in the region last year, 32 incidents of piracy had already been reported by this past July. There has also been an increased level of violence along with the increased number of attacks. Guns were reported in at least 20 of the 32 incidents, and two have been killed as a result of these attacks. Many of these attacks are also occurring at greater distances from the coast, suggesting the use of more sophisticated vessels in perpetrating these attacks.

Somali piracy also remains a problem. According to Pottengal Mukundan, Director of the IMB, “Somali pirate attacks cover a vast area, from the Southern Red Sea, Gulf of Aden, and Gulf of Oman to the Arabian Sea and Somali Basin, threatening all shipping routes in the northwest Indian Ocean.” Also, as of June 2012, Somali pirates still held a significant number of crewmembers and vessels hostage. Although, as mentioned above, there has been a decline in the number of Somali pirate attacks from last year, the level of violence has not decreased. In March, for example, Somali pirates captured a Taiwanese fishing boat in the waters of the Seychelles Islands and killed the Taiwanese captain two days later. These Somali pirates are still holding the crewmembers of this vessel hostage.

Despite the increase in violence and attacks in certain regions, there has been much progress in the global effort against piracy. More nations are beginning to prosecute pirates, and military and naval efforts against pirates have significantly increased. Recently, a Kenyan Court of Appeals overturned a decision precluding the trial of Somali pirates in Kenya. A judge had previously ruled that Kenya lacked jurisdiction; however, the Court ruled that every State has an interest to try crimes such as piracy. Germany also convicted ten Somali pirates on October 19, after an almost two-year long trial, for seizing a freighter. Furthermore, efforts to locate and stop piracy have increased beyond NATO and EU-led efforts, with countries such as the United States and France increasing enforcement and surveillance.

Bailey Woods is a 2L and a staff editor on the Denver Journal of International Law and Policy

Maritime piracy off the coast of Somalia continues to spiral into an increasingly threatening international crisis, with attacks in the Gulf of Aden increasing during the first half of 2011. While more states have been prosecuting pirates in their national courts during the last year, United Nations officials have indicated that as many as 90% of pirates captured by national navies are subsequently released due to complicated legal and financial burdens associated with prosecution. In the search for solutions to the current maritime piracy problem, international legal initiatives addressing civil aviation security may offer insight

A global trend of airline hijackings beginning in the late 1960s and culminating in the terrorist attacks of September 11, 2001, catalyzed various initiatives that have improved the efficacy of aviation security. The international legal regime governing civil aviation security developed through various international treaties, conventions, agreements, and declarations and resolutions from important international institutions. In particular, international agreements embodying the legal maxim aut dedere aut judicare—the obligation of states to prosecute or extradite the accused—are an important component of the international aviation security regime. The United States, as the world’s largest aviation market, has also contributed to the international civil aviation security regime through its domestic legislation. At various times in the modern era, the United States has used economic leverage to propel compliance with its domestic security standards monitored by Federal Aviation Administration security audits by barring non-complying states from access to its airports.

This broad legal framework offers a valuable example of cooperation and collaboration between various stakeholders to address a trend in international crime. While there are limitations that must be considered in drawing an analogy between airline hijackings and maritime piracy due to contextual and legal distinctions, there are significant similarities conducive to legal comparison.

Borrowing from Civil Aviation

In particular, the elimination of safe havens for airline hijackers appears to be an effective deterring factor that may inform initiatives relevant to maritime piracy. In aviation security, prosecute-or-extradite approaches have made a discernible impact on deterring hijackings. For example, much of the airline hijacking crisis in the United States during the 1960s and 1970s was driven by Cold War-era motivations involving Cuban political refugees seeking a safe haven in the United States or Cuba (depending on their political orientation). In 1973, the United States and Cuba exchanged diplomatic notes constituting a Memorandum of Understanding that neither country would serve as a safe haven for hijackers. Following this agreement, the number of attempted hijackings of aircraft in the United States dropped significantly from 25 hijackings per year prior to the agreement to only one the following year. This remarkable change suggests that the existence of a sanctuary nation for hijackers enabled the Cuban hijacking problem.

Similar extradite-or-prosecute provisions exist in the international legal regime governing maritime piracy, yet these provisions have not been matched with international compliance. Being unable to rely on Somalia to prosecute pirates within its borders, the international community must, at least temporarily, seek to deter and eliminate safe havens through prosecution outside the current Somali judicial system. The enforcement of international agreements with provisions obliging states to prosecute piracy suspects or extradite them to another state willing to prosecute is a vital part of the solution. To ensure compliance, the international community or the United States should consider coercive mechanisms such as those used in civil aviation security to drive compliance with these important international agreements.

Initiatives that mirror airport security measures designed to deter infiltration of the security infrastructure at airports may also offer anti-piracy solutions. While increased port security may be less effective than its airport counterpart, ports may serve as checkpoints to determine whether ships are outfitted to implement piracy-deterring strategies, such as internationally recognized Best Management Practices (BMPs). Currently, it is believed that shipping companies do not always employ BMPs as suggested by maritime security experts. As ships remain vulnerable to piratical acts and attacks continue to be successful, the piracy problem is perpetuated.

Economic sanctions that have been used to fight airline terrorism may also being used to target financers of piracy crimes. Such measures have already be implemented to some degree on the domestic level through the United States Department of Treasury Office of Foreign Assets Control, which administers and enforces economic and trade sanctions based on foreign policy and national security goals. An Executive Order issued by President Obama on April 12, 2010, authorized sanctions on “those who engage in or support acts of piracy off Somalia’s coast, including those who provide weapons, communication devices, or small boats and other equipment to pirates.” While this approach is encouraging, sanctions may have limited effect because pirates often operate with liquid assets.

Communication between various stakeholders affected by the piracy crisis may also be informed by the international airline security regime. Some commentators have suggested that the International Civil Aviation Organization (ICAO) and its role in air transportation could serve as a model for security cooperation that could translate in the maritime commons through existing bodies such as the International Maritime Organization. In particular, ICAO’s success may serve as a model for an international agency to support an enhanced global framework for international maritime situational awareness and security cooperation.

Any solution to effectively address the maritime piracy crises off the coast of Somalia must be comprehensive. While port security to ensure compliance with BMPs, economic sanctions targeted at piracy financers, and enhanced communication among stakeholders are important considerations, the problem of piracy is unlikely to be eradicated while national navies continue to catch and release piracy suspects. Civil aviation security law provides an applicable example of the international community’s capacity to enforce prosecution or extradition of terrorists and hijackers. Anti-piracy stakeholders, including national governments, the shipping industry, and international organizations tasked with ensuring international peace and security, should consider these successes in limiting airline hijackings through legal accountability as they work together to reign in piracy in the Gulf of Aden.

The surge of piracy attacks worldwide and their increasing threat to international shipping are indeed alarming. The Piracy Reporting Center of the International Maritime Bureau (IMB), an independent arm of the International Chamber of Commerce, reports that incidents of piracy and robbery at sea reached 445 in 2010, compared with 400 in 2009, while there were 293 attacks in 2008, and 263 and 239 for the years 2007 and 2006, respectively. In the first five months of 2011 there have been 273 such incidents — almost 50 percent more than in 2010. 92 percent of all hijackings in 2010 were off the coast of Somalia.

The global economic cost of maritime piracy is estimated at between $7-12 billion per year, according to a December 2010 report by the One Earth Future Foundation. The report found that the ransoms paid to Somali pirates had increased from an average of $150,000 in 2005 to $5.4 million in 2010. Pirates have killed several hostages when ransoms were not paid.

The international community has responded to this growing threat of piracy, especially in the Gulf of Aden and off the Somali coast, by undertaking naval operations, coordinated by NATO, the EU, and a coalition led by the United States, in addition to several countries operating on their own. It has been suggested to arm crew members, but this has not won favor from the shipping companies; perhaps it is more feasible to use private security companies, as is being done in some cases. Notwithstanding all these efforts, the scourge of piracy continues to be a major challenge to the international community. The major reason is that Somalia is a failed state, it has Africa’s longest coastline, spanning 3,025 miles, and its geographical location lies next to key shipping routes connecting the Red Sea and Indian Ocean.

Piracy constitutes a violation of international law, a crime that is considered a threat to all nations navigating the open seas. In an 1820 US Supreme Court case, US v. Smith, Justice Story, writing for the Court, declared that “there is scarcely a writer on the law of nations who does not allude to piracy as a crime of a settled and determinate nature.” Consequently the principle of universal jurisdiction applies to acts of piracy. Under this principle, any nation may prosecute acts of piracy in its domestic court, no matter where these acts occurred and no matter who the perpetrator is. Accordingly, a nation could rely on this principle to seize and prosecute Somali pirates engaged in piracy on the high seas. However, most countries have routinely released the pirates after capturing them because of the problems associated with trying them in their own national courts — expense, lack of adequate evidence, and the feared claim of asylum on the pirates’ part.

Some national courts have begun prosecuting pirates. Kenya has entered into several agreements with the European Union, the United States, the United Kingdom, China, and several other countries, to take custody of and prosecute pirates in its courts. Seychelles has also been prosecuting suspected pirates in its national court. Also, in late November 2010, the Virginia Federal District Court convicted five Somali pirates on federal piracy charges. Some European courts, too, have considered trying Somali pirates. Among these courts, the Dutch have taken the lead.

In addition to customary international law, two treaties are pertinent, under which a state could arrest and prosecute pirates in their national courts. The conventions are the United Nations Law of the Sea Convention (UNCLOS) and the United Nations Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA). UNCLOS calls upon all states to combat piracy by cooperating to the fullest extent in repressing this crime on the high seas or any other place outside the jurisdiction of any state, although only warships, military ships, or other crafts of government service are permitted to seize them.

The 1992 SUA currently has 150 state parties and is aimed at addressing concerns about violence and terrorism on the high seas. Although it does not expressly outlaw piracy, an offense under SUA is committed if a person willingly takes part in seizing control of a ship by force or intimidation, uses violence against an individual on a ship affecting the safety of a ship, or damages a ship in such a way that it affects the ship’s safe navigation. Attempts at these piratical actions, aiding or abetting a pirate, or threatening to commit piratical acts are also included. The SUA Convention provides for extradition of offenders to ensure that a criminal is prosecuted even though the state in whose territory the offender is located is unwilling or unable to prosecute. In addition, the International Tribunal for the Law of the Sea may also provide a remedy as a forum for a piracy trial.

The United Nations Security Council, acting under Chapter VII, has adopted several resolutions since 2008 to counter piracy and armed robbery at sea. It has authorized member states to take action against pirates even in Somalia’s territorial waters and has called upon states and regional organizations to deploy naval vessels, arms and military aircraft and seize and dispose of vessels and equipment used in the commission of these crimes. It has also called on states to criminalize piracy under their domestic laws, and to favorably consider prosecuting and imprisoning suspected pirates.

There is currently no possibility of a Somali court sitting in Somalia or in the territory of another regional state applying Somali law. Could a regional tribunal or an international tribunal established by the Security Council under Chapter VII of the UN Charter be feasible? The challenges of creating such an international judicial body are enormous, but it is worthwhile seriously considering this possibility.

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Ved Nanda is the John Evans Distinguished University Professor, University of Denver; Thompson G. Marsh Professor of Law and Director, International Legal Studies Program, University of Denver Sturm College of Law